Sabino Town & Country Estates Assoc. v. Carr
In Sabino Town & Country Estates Assoc. v. Carr, 186 Ariz. 146, 920 P.2d 26 (1996), the Court of Appeals of Arizona adopted the Castle Associates rule, but limited its application to a specific set of facts which closely resembles those in the case before me.
That case concerned an express, deeded access easement. The plaintiff, who owned the servient estate, built fences across the access easement and maintained those fences for longer than the prescriptive period. The fences prohibited motor vehicles from accessing the easement, but featured several small openings that allowed people to use the easement area for hiking, jogging, horseback riding and occasional moped riding.
Between 1972 and 1993, while the prescriptive period ran, the owner of the dominant estate "did not use or attempt to use the easement for regular ingress to, or egress from, her property." Id. at 149.
In 1993, after the fence had been up for longer than the prescriptive period, the defendant purchased the dominant estate with the intent to open a business there. The defendant bought the property for the sole purpose of establishing and running a "bed and breakfast." After purchasing the property, the defendant began clearing and grading the easement area to use it for access to the new business.
The plaintiff filed suit, arguing that it had extinguished the easement by maintaining the fences for longer than the prescriptive period.
The Court of Appeals of Arizona disagreed, and applied the Castle Associates rule in the following, limited fashion:
We adopt and apply that principle here but limit its application to cases like this involving claims of partial extinguishment of an easement's scope of use by adverse possession. In such cases, when an unrestricted, perpetual, recorded easement of ingress and egress has not been needed or used for that purpose, and when the owner of the dominant estate has had uncontested access to the easement and has continuously used it for other purposes, the maintenance of a fence which obstructs the unused easement does not terminate the easement by adverse possession. Under such circumstances, there must be a clear, unequivocal message from the servient estate's owner, beyond mere fencing, prohibiting any future use of the easement for ingress/egress. The easement holder should not be left to speculate as to whether an easement may be partially extinguished or its scope of future use limited. Sabino Town & Country Estates Assoc. v. Carr, 186 Ariz. 146, 150, 920 P.2d 26 (1996).